Let’s give the emperor some (real) clothes!
The oft-lauded flexibility of the ‘constitution’ arguably make the UK a potentially unstable and unreliable negotiating partner: there will, for example, be no entrenched or judicially enforceable domestic legal principle that will prevent Parliament from reneging on whatever agreement, if any, the EU and the UK reach on the latter’s withdrawal.
Recent events demonstrate that the UK needs an entrenched, codified constitution
Everyone has their quirks: one of mine is the unease I feel whenever the word ‘constitution’ is uttered in the context of the UK’s system of government. In the interests of full disclosure, I remain unconvinced that the UK has a constitution: my views on the subject are essentially those expressed by F.F. Radley in his 1988 article: “There is no British Constitution: A Dangerous Case of the Emperor's Clothes”. If there is a UK constitution, it is certainly not one that contains anything substantive (apologies to A.V. Dicey); rather, it is an unwritten rule-of-recognition discernible from judgments and scholarly writings: “What the Queen-in-Parliament enacts is law.” This maxim, however, raises a ‘chicken-before-the-egg’ question as to the proper source of the monarch’s power, a problem debated memorably in the ‘constitutional peasants’ scene in Monty Python and the Holy Grail.
Whatever one’s views on the existence of a UK constitution, it is beyond controversy that the UK does not have an entrenched, codified constitution. The lack of such a constitution does, of course, have advantages: most obviously, the flexibility it affords Parliament. I have (and this is purely anecdotal) often sensed in the UK an almost romantic regard for the eccentric charm of the UK ‘constitution’: how it evolved historically; how, notwithstanding the fact no-one would design it as it is, it nevertheless, like some rambling Tudor edifice, ‘works’. Recent events, however, should cause us to scrutinise any claim that the UK’s ‘constitution’ is functioning.
In 2014 and 2016, two referendums were held (on Scottish independence and Brexit respectively). These highly-divisive polls were ad hoc, there being no constitutional framework for referendums in a system based on representative democracy where the Queen-in-Parliament is sovereign. The consequences of the ill-design of the latter vote in particular are still with us (and will be for some time). Brexit has also given rise to the need for Parliament to legislate for the UK’s withdrawal: the resulting European Union (Withdrawal) Bill proposes, in Section 7, to allow Ministers to repeal or amend primary legislation by way of regulations. Such a ‘Henry VIII clause’ ought not be permissible (as a flagrant breach of the separation of powers) in a constitutional democracy. Moreover, the oft-lauded flexibility of the ‘constitution’ arguably make the UK a potentially unstable and unreliable negotiating partner: there will, for example, be no entrenched or judicially enforceable domestic legal principle that will prevent Parliament from reneging on whatever agreement, if any, the EU and the UK reach on the latter’s withdrawal. Consider the consequences of this for the security of EU27 citizens’ rights in the UK post-Brexit. While one can only speculate what, in a parallel universe, a codified, written UK constitution might have contained, it is reasonable to assume its framers would have sought to avoid the occurrence of the above-described problems.
It is, therefore, high time that the emperor were gifted some real clothes.
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